Thursday, April 28, 2011

2 Malaysians overseas arrested by the US and detained at the Guantanamo Bay detention facility. Worse still - they were apparently arrested in Thailand and Cambodia, 2 member nations of ASEAN. How could Malaysia sit by silently? If 2 US citizens were in, say Thailand, and were arrested and detained by the Malaysian government under the ISA, for example, would the US government allow this to be done. I do not think so. Malaysia should also not have sat by silently - and should safeguard all its citizens - be they in the country and/or in some other country. I do hope the government clarifies matters and justifies their reason for allowing these 2 Malaysians to languish in detention under the US.

If two Malaysians commit a crime in US, AND gets arrested in the US, and thereafter charged and tried, it is a different matter - but in this case the 2 were arrested not in the US.

Malaysia must demand the safe return of two citizens detained by the US in Guantanamo Bay, if it does not want to be seen as failing to uphold its rights as a sovereign nation.

Human rights lawyer Charles Hector (left) said it is the country's “duty” to its citizens to follow up on such cases, especially since the two - suspected terrorists Mohamad Nazir Lep and Mohd Farik Amin - were not arrested on American soil.

“Malaysia should be condemned for not following up on the two there. If it were any other country, they would be jumping up and down if their citizens were detained by another country,” he said when contacted today.

Charles said the detention of the duo in the anti-terrorism facility should not be allowed as they were not arrested for crimes committed in the US.

Based onleakedUS government documents posted on Wikileaks, Mohamad Nazir was arrested in Thailand while Mohd Farik (right) was caught in Cambodia in 2003.

The duo were transferred to Guantanamo Bay on Sept 4, 2006, based on allegations that they had been plotting a similar attack as the Sept 11, 2001 tragedy in New York, but this time in Los Angeles.

Charles pointed out that, as with any country, the US is entitled to charge any individual for a crime committed on its territory but stressed that taking custody of individuals caught in another country is a different matter altogether.

Malaysia can leverage on the fact that, despite detaining a group of foreigners under the Internal Security Act (ISA) last year, they were deported to their respective countries to be tried in a court of law, he said.

“They should be sent back to Malaysia and tried under Malaysian law. They were caught in Asean countries... the US should recognise not only Asean but also the sovereignty of Malaysia,” he said.

“I'm sure the US has no jurisdiction in Cambodia or Thailand. This is (Malaysia's) duty to the citizens. If Malaysia allows the US to do this, it is as if Malaysia is not standing up for its sovereignty.”

'Fair, open trial needed'

Human rights NGO Suaram also weighed in, saying the main issue is to have a “fair and open trial” for the duo, instead of leaving them to languish among more than 700 people being held in the Guantanamo Bay facility in Cuba.

Coordinator P Nalini said that, from the time the NGO found out about the detention of the duo in 2006, it has constantly called on the government to bring them back to face trial here, or at least to push the US to conduct a trial there.

She pointed out, however, that the continued existence of the ISA gives Malaysia fewer grounds to demand that they be extradited.

Suaram said it believes that a trial, regardless of where it is conducted, is a more realistic aim for the sake of Mohamad Nazir and Mohd Farik.

“If a trial (can't be held) in the US, send them back here. So long as there is no fair and open trial, we won't get the truth.”

Tuesday, April 26, 2011

There should be Industrial Courts all over Malaysia - in every State, and in the larger States, at different locations in the State so that it is easily accessible to every person - every worker. But, after 50 over years of independence, in Peninsular Malaysia, Industrial Courts are located in Kuala Lumpur (21), Penang(2), Johor(2) and Perak(1) only. There is one Industrial Court each in Sabah and Sarawak. Total number of Industrial Courts in Malaysia is 28.

How difficult is it for a worker to go so far to claim justice? Why? Should there not be industrial courts situated in every major towns?

What about industrial relations department - where worker wrongfully terminated need to complaint if they are claiming for reinstatement - i.e. their job back needs to lodge a report within 60 days of being wrongfully dismissed. This too is not even available in all major towns - not just State capitals. Workers do not money and resources to travel far just to lodge a complaint.

A pro-people...pro-worker government would make sure that there are IRD offices and Industrial Courts available all over Malaysia, where workers will not have to travel more than 100 KM to get there. Companies, on the other hand, are rich and they have resources - and hence to situate Industrial Courts only in KL for some worker in Kota Bahru...Kuala Trengganu...Kuantan...Muadzam Shah...Temerloh...Kuala Lipis... is just too burdensome for the ordinary worker...

Monday, April 25, 2011

KUALA LUMPUR, April 24 — Pahang lawyers are asking Putrajaya to expand Lynas Corp rare earth Kuantan plant’s one month review to at least a year, saying there must be a thorough look into public health and safety aspects to assuage fears about its radioactive waste.

Pahang Bar chairman Hon Kai Ping admitted the suggestion might tarnish Malaysia’s image as an investment destination but pointed out that the government should not rush its decision with so much at stake.

“The Pahang Bar is of the opinion that careful and thorough scrutiny of the rare earth operations is needed here and no decision should be rushed if the government is serious regarding the health and welfare of Malaysians,” Hon said in a statement to The Malaysian Insider.

He was commenting on International Trade and Industry Minister Datuk Seri Mustapa Mohamed’s directive on for an international panel (IP) to review the health, safety and environmental aspects of the RM700 million plant in the Gebeng industrial park before issuing a pre-operating licence.

Mustapa ordered the move on Friday following mounting criticism and opposition to the plant operated by the Australian miner’s local subsidiary Lynas Malaysia Sdn Bhd due to fears of radioactive pollution. A similar plant in Bukit Merah, Ipoh, that shut down in 1992 was cited as the cause of eight cases of leukaemia, seven resulting in death.

Lynas has expressed confidence the review will not hamper its plans to open the refinery and processing plant by this September.

Hon said the state chapter of layers did not have the exact terms of reference for the IP but details in the media suggested it was restricted to a scrutiny of the processing plant.

“If that is the case, then the Minister surely had not been briefed regarding the road shows organised by the State SEDC wherein the local experts contend that the amount of the radioactive Thorium in the ore to be imported is 0.16 per cent as opposed to 6 -8 per cent as shown by some independent foreign government reports and this formed one the main concerns of Kuantan folks raised during the town hall style briefings.

“If the terms of reference of the IP is restricted to the scrutiny of the processing plant only, obviously one of the main concern of the Kuantan folks would not be addressed and the findings of the IP serves no purpose,” he added.

Hon said the Pahang Bar wanted the terms of reference of the IP must be widened to “include all aspects of the rare earth operations for example the truth regarding the amount of thorium content of the ore to be imported, the impact on the environment and the tourism industry, the number of base line studies conducted and their conclusions, the licensing conditions to be set by AELB, the proof of the parallel process to ensure that the storage in Gebeng is only temporary etc, just to name a few”.

He also asked for all documents, government and those submitted by Lynas, to be made public and independent experts appointed by Kuantan residents and other groups to the panel.

“To that extend and in order to do a thorough review, it is envisaged that a minimum period of one year is needed for a proper review to be concluded. Then and only then would the review by the IP gain some ground to assuage the fears of the Kuantan folks and Malaysians as a whole,” Hon said.

The lawyer noted the Bar’s proposal for the duration for the panel to work may disrupt the operational launch of the rare earth plant and affect the country’s image as an investment target but said public good was more important.

He asked the government to consider thorium’s undisputed half life of 14,000 million years and “Malaysia’s experience in Bukit Merah Perak, where to this day, 80,000 drums of thorium radioactive toxic waste is still stored there and as such any decision would affect Malaysians for generations to come”.

Local environmental group Sahabat Alam Malaysia (SAM) asked the government yesterday to reveal all details of the panel reviewing the plant or risk turning it into a public relations exercise.

SAM president S.M. Mohamed Idris said the government must reveal the names and qualifications of all the experts to be appointed on the panel and publicise their detailed findings upon completion of the one-month study.

“The public and communities in Kuantan and Gebeng have the right to know who the experts are who would be conducting the study. We need to ascertain the experts’ objectivity and competence on low-level radiation and impacts.

“The findings of the study should also be made public so that it can be verified and open for public comments,” he said in a statement.

Prime Minister Datuk Seri Najib Razak has pledged that public health and safety was priority in his home state, where the plant will be sited.

Lynas had expected to receive a preliminary operating licence from regulators Atomic Energy Licensing Board (AELB) by September, which was to be renewed as a full licence within three years should the plant comply with agreed standards.

It is anticipating revenue of RM8 billion a year from 2013 onwards from the rare earth metals that are crucial to the manufacture of high-technology products such as smartphones, hybrid cars and bombs. - from Malaysian Bar Website

Malaysian Airline System Bhd CEO withdrew between RM900,000 and RM1.5 million in bonuses and salaries a year

the government-owned Proton Holdings Bhd's CEO earned between RM500,000 to RM1 million a year between the years 2006-2009

I do not believe that government owned and 'linked' companies should be paying the CEOs, Directors and/or officers salaries and/or bonuses that exceeds what is current received by the Prime Minister, Ministers, Menteri Besars and/or Director Generals of the various government Ministries/Departments.

It is the peoples' money and there really is no justification for such high salaries/bonuses/allowances - or a need to make any comparison with what is being paid by private companies.

A Human Rights Commissioner also gets only about RM7,000 per month.....

Interesting also to see how much Directors of these government owned/controlled companies earn...?

The government disclosed today the salaries and benefits of the top government-linked companies chief executive officers' and compared them to their counterparts in the private sector.

In a written reply to Lim Lip Eng (right)(DAP-Segambut) on the matter, Finance Minister Najib Abdul Razak said, however, that the bonuses and salaries of these CEOs were less or equal to that of CEOs of companies in the private sector.

Topping the list of GLC CEOs' earners in the years 2006 to 2009 was the CEO of Maybank Banking Bhd, who drew between RM1.4 million to RM4.9 million yearly in bonuses and salaries.

Najib compared this to the CEO of non-GLC Public Bank Bhd, who earned between RM4.7 million to RM6.1 million a year during the same four years.

In the energy utility industry, said Najib, the CEO of government-linked Tenaga Nasional Bhd (GLC) earned between RM800,000 to RM1.4 million.

The CEO of privately-owned YTL Corporation Bhd, meanwhile, earned between RM3.6 million and RM10.2 million.

In the aviation industry, Malaysian Airline System Bhd CEO withdrew between RM900,000 and RM1.5 million in bonuses and salaries a year, while his counterpart in Air Asia Bhd received between RM1 million and RM6 million a year during the same years.

As a final comparison, Najib (left) disclosed that the government-owned Proton Holdings Bhd's CEO earned between RM500,000 to RM1 million a year between the years 2006-2009, while the CEO of Tan Chong Motor Holdings Bhd received between RM4.5 million to RM4.95 million a year during the same time period.

In determining the salaries and bonuses of GLC CEOs, Najib said the government takes into consideration the needs of offering quanta that are competitive with the public sector, reflective of the individual CEO's performance, relating bonuses and salaries with their achievements and “ratings”.

“The total amount of remuneration given to CEOs of GLCs is calculated in accordance with the targets stipulated (in the form of key performance indicators) and other targets that may be determined to transform the GLCs to become high-performing companies,” said Najib.- Malaysiakini, 6/4/2011, Gov't reveals earnings of GLC heads

Friday, April 15, 2011

BERSIH 2.0 would like to express serious concerns regarding several issues that jeopardise free and fair campaigning in the days leading up to the Sarawak state elections on 16 April 2011.

1.Distinction between political interest and administrative positions

BERSIH 2.0 is appalled that Prime Minister Najib Rajak has cancelled this week’s Wednesday cabinet meeting to campaign in Sarawak. As the leader of the national government and Barisan Nasional (BN), Najib has set a bad example of blurring the lines between the federal government on the one hand and party politics on the other. Instead, Najib should emulate the first Prime Minister Tunku Abdul Rahman who took two months leave to campaign in the 1959 elections. During his absence, Deputy Prime MinisterTunku Abdul Razak acted as head of the government. We are disappointed to note that both Prime Minister Najib Razak and Deputy Prime Minister Muhyiddin Yasin were in Sarawak campaigning for Barisan Nasional in the past few days. It is not stated if the head and deputy head of the government took leave to campaign in Sarawak.

This separation of powers is further confused by the manipulation of the Ikatan Relawan Rakyat (RELA) and the armed forces in the Sarawak state elections. It has been reported that political secretary to the Sarawak Chief Minister, Wilso Nyabong Ijang, called on RELA members to ensure victory for BN candidates in the upcoming elections, equating administrative obedience to the government with political support for the party in power. This is in breach of administrative neutrality. In addition, there are also allegations that the military has been intimidating constituents to vote for BN by threatening to tear down schools should the opposition win[1]. Such dirty tactics must not be employed in election campaigning and the Election Commission must investigate into such claims and take action against those responsible. The latest incident involves Deputy Prime Minister Muhyiddin Yasin allegedly “reminding” an official gathering of teachers held on government time to mark “X” next to the BN candidate on their ballot papers[2].

BERSIH 2.0 would like to emphasise that those holding executive and administrative roles must not confuse or sideline their duties in favour of partisan political interests. We remind politicians on both sides of the political divide, including Barisan Nasional and Pakatan Rakyat, to abide by this principle.

2.Corrupt practices

BERSIH 2.0 condemns the ongoing bad practice of offering gifts, money and promises of development with the intention of influencing the voters’ choices. This amounts to election offences. One key example that mars the reputation of PM Najib Razak is the scrambling for “goodies” containing Tupperware merchandise during a rally at MBKS stadium on 9 April. Another more serious example is Sarawak Progressive Democratic Party (SPDP) deputy president Peter Nyarok’s threats to longhouse chiefs that he would use his “ministerial power” to withdraw promised minor rural projects if the opposition wins in the respective longhouses[3]. We call on all candidates and politicians to respect the Election Offences Act 1954. The EC must prove its independence by taking immediate action against those who commit election offences, and not “pass the buck” to the Malaysian Anti-Corruption Commission.

3.Postal votes

Based on the figure released by the EC, there are only 34 overseas Sarawakians who will be voting via postal ballot. We question if this figure is an accurate reflection of the actual number of registered Sarawakian voters living overseas considering the restrictive postal voting regulations which only allow postal votes from diplomats and overseas students.

The EC, which has extended postal ballot rights to police spouses under Sub-regulation 3(1)(f) of the Elections (Postal Voting) Regulations, should have done so for all Sarawakians studying or working in Semenanjung Malaysia, Sabah, Singapore, Brunei and other countries. The expensive transportation cost is believed to be one of the reasons why Sarawak had a low turnout of62% in the 2006 state poll. In the 2008 general elections, Sarawak registered a lower turnout at 58%, the lowest amongst all states and a stark comparison to 79% for Semenanjung Malaysia.

BERSIH 2.0 is deeply disappointed that the EC has simply ignored the appeal of civil society on March 22 calling for both postal voting rights for Sarawakians and a campaign period of at least 21 days to allow for large scale postal voting. The EC should be responsible for the potential disenfranchisement if the turnout in Sarawak elections is again much lower than the national standard.

4.Barring of activists from entering Sarawak

In the past week, two activists – BERSIH Steering Committee member Dr Wong Chin Huat and Steven Ng – have been barred from entering Sarawak. We reiterate that this is an outrage and outright abuse of power by Chief Minister Taib Mahmud in his effort to stifle dissent. Bersih 2.0 demands that the complete list of individuals barred from entering Sarawak is made public, together with the reasons for such a denial of entry. We will support any legal challenge to define and test the scope of the constitutional provision enabling Sabah and Sarawak to control movement and immigration.

The Centre for Independent Journalism (CIJ) regrets the guilty verdict delivered today against National Union of Journalists (NUJ) Malaysia president Mohamed Ha’ta Wahari for allegedly tarnishing his employer’s image and revealing their “secrets”.

A domestic inquiry found the senior journalist with Utusan Malaysia guilty of eight charges that stemmed from reports of his statement published in Malaysiakini, The Malaysian Insider, The Sun and Merdeka Review regarding the dismal financial and ethical performances of the newspaper published by UMNO-owned Utusan Melayu (M) Bhd. The top management will decide the penalty to be imposed on Ha’ta in a fortnight.

Ha’ta has been suspended since 11 January pending the outcome of the domestic inquiry initiated on 6 January.

CIJ calls on all Malaysians to rally behind Ha’ta and send a message to the Utusan top management that it is within the right of an NUJ president to speak for the dignity and integrity of the profession, and reject political interference in the newsrooms.

Fair comment is allowed as part of the constitutional right to freedom of expression. Yet, the fact that punitive action can be taken against a journalist union leader for criticising the lack of the very freedom that is foundational to the work of journalists speaks volumes of the state of press freedom in Malaysia, which has never been strong since Operasi Lalang in 1987.

The Centre for Independent Journalism, Malaysia (CIJ) is a non-profit organisation that aspires for a society that is democratic, just and free, where all peoples will enjoy free media and the freedom to express, seek and impart information.

Thursday, April 14, 2011

The trend worldwide is to move away from the death penalty, acknowledging that the quality of our civilisation is judged as much by how we honour our heroes as by how we treat the worst in our midst.

DURING question time in the Dewan Rakyat on Nov 9, Datuk Seri Nazri Abdul Aziz, our articulate Minister in the Prime Minister’s Department, in replying to MP Karpal Singh, defended the existing law on death penalty by pointing out that the Malaysian position is consistent with Article 6(2) of the International Covenant on Civil and Political Rights 1966.

Under this celebrated Covenant, there is no absolute ban on death sentences. However, the “inherent right to life” is recognised and the death sentence may be imposed “only for the most serious crimes”.

There must be a right of appeal to the higher courts and the right to apply for pardon. The death sentence should not be imposed on pregnant women and those below 18.

In a spirit of openness, the minister welcomed further discussion on the issue. This must be commended. At the same time, we must alert the Government that on several scores Malaysian law is out of sync with a growing body of international law on capital punishment.

The trend throughout the world is to move away from the death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights, which has been ratified by 57 states, commits itself to total abolition.

European and American Conventions have also moved in that direction. The UN Commission on Human Rights by Resolution 2004/67 has called for a moratorium on executions.

According to Amnesty International, 87 countries and territories have abolished the death penalty for all crimes. Eleven countries have abolished it for all but exceptional crimes such as war-time betrayals.

Twenty-seven countries retain the death penalty but have not carried out any execution for the past 10 years.

This makes a total of 125 countries that have moved away from the death penalty in law or practice.

However 71 other countries – including China, Iran, Saudi Arabia, the US, Malaysia and Singapore – retain, and use, the death penalty.

It is also notable that even for war crimes, crimes against humanity or genocide triable by the International Criminal Tribunals created by the United Nations Security Council for former Yugoslavia and Rwanda, the maximum penalty is life imprisonment.

In most countries of the world, drug offences are not regarded as sufficiently serious to warrant a death penalty. However, drug trafficking carries the mandatory death sentence under section 39B of our Dangerous Drugs Act.

Under Section 37, a number of crushing presumptions apply. For example, a person in the care or management of a premises is deemed to be the occupier of the premises.

A person in possession of 15 grammes of heroin or morphine, 1000 grammes of opium, 200 grammes of cannabis and specified amounts of other dangerous drugs shall be presumed to be a trafficker. The burden of proof is on him.

Reprehensible though drug possession and trafficking are, a clear fact is that people who get caught are often not involved in the high ranks of the supply chain. The main players are neither apprehended nor deterred.

A further objectionable feature of our death penalty laws is that for the crimes of murder, drug trafficking, unlawful possession of firearms and attempt by a life-convict to murder if hurt is caused, capital punishment is mandatory and the court has no choice but to impose the penalty of death.

All mandatory punishment laws compel the courts to treat the many accused as alike even though there may be substantial differences in the facts of the case.

For example, if a woman has been raped and the culprit is, for whatever reason, either not apprehended or acquitted, and the ravished victim then takes the law in her own hands and kills the accused, she may be convicted of cold-blooded murder with only one penalty: mandatory death.

Surely the judge should have discretion in such a case to impose the lighter sanction of imprisonment. To the extent that unlike cases have to be treated as alike, mandatory sentences are a violation of the constitutional ideal of equality before the law and equal protection of the law.

Mandatory sentences are also an indirect interference with judicial independence and the right of a judge to tailor the penalty to suit the crime; to temper justice with mercy and to be fair to all sides – the victim of the crime, the accused and society at large.

Many judges in their private moments have spoken with remorse of the death sentences they had to impose even though there were extenuating circumstances.

There is overwhelming evidence that as long as the death penalty is maintained, the risk of executing the innocent can never be eliminated. For example, in the US, since 1973, 123 prisoners have been released after evidence emerged of their innocence of crimes for which they were sentenced to death.

Their sentences were based on prosecutorial or police misconduct, forced confessions, unreliable witnesses and inadequate defence representation.

The argument that the death penalty deters is not supported by sufficient scientific studies. This is specially so in relation to murder, which is often a crime in the heat of the moment when consequences are farthest from contemplation. Further, UN studies indicate that abolitionist countries do not show any upsurge in crime.

There is a fair amount of social data that, around the world, the death penalty is unequally administered. It tends to apply disproportionately to the poor, marginalised and the minorities

In support of capital punishment, one could argue that no known legal system exhibits an unconditional and absolute reverence for life.

Everywhere there are laws on private defence of person and property, euthanasia, abortion and police powers that permit the extinguishing of life in certain circumstances. The Charter of the UN permits some types of wars.

Society must take a tough stand against violent crimes and must exact revenge or retribution. It is submitted that this attitude must be balanced with an equally compelling ethical issue that as God gives life, only He should take it away.

The death penalty is a form of legalised murder. It reflects primordial instincts of violence. It perpetuates a vicious cycle of brutality.

I think Malaysia should rethink its extensive provisions for death penalty. At the moment, the penalty can be imposed for a large number of offences – waging war against the Yang di-Pertuan Agong, offences against a Ruler or Governor, abetting mutiny in the armed forces, murder, abetment of suicide, attempt by a life-convict to murder if hurt is caused, kidnapping or abduction in order to murder, hostage taking, gang robbery with murder, drug trafficking and unlawful possession of firearms.

Even if total abolition is not seen as desirable because of the age of terrorism in which we are living in, a narrowing down of the offences for which the death penalty is imposed can be considered. The mandatory nature of the penalty could be lifted and judicial discretion restored.

We must remember that the quality of our civilisation is judged as much by how we honour our heroes as by how we treat the worst in our midst.

One of the problems with the Malaysian voter has always been fear...when it comes to voting in the Opposition, and this fear have been propagated by the ruling coalition, and the time has come that people overcome this fear and vote for the best interest of Malaysia and the peoples of Malaysia.

FEAR 1 - fear that the Opposition do not have the capacity to rule effectively - and all that they can do is to highlight the wrongs, injustices and rights violations that happen. This fear, however, may no longer be justified following the victory of the Opposition in the States of Penang, Selangor and Kedah which they have shown they could effectively govern. Let's not forget that it has been the Opposition that have been effectively governing the state of Kelantan for many many years. They have also effectively governed states of Trengganu and even Sabah(at one time)

FEAR 2 - the fear that there will be repercussions and 'problems' , even violence, if the BN loses, and the racial riots of May 13 is brought up. Malaysians, generally are a peace loving people happy to live (or rather survive) 'peacefully' even in a situation where there is injustice and discrimination.

There is also the threat that 'development' and the flow of funds will be reduced and/or 'stopped' if the constituency votes for the opposition. In the people's memory, they have seen this happen before. For example, development in Seremban seemed to be stagnated until the BN won this constituency back. We remember also how the Opposition State government had difficulty getting the oil royalties. We see also today, how Federal funds for State development seems to slow down when Opposition wins States. Pakatan also indirectly justifies this by saying that they have to win at the Federal government if there is going to be real 'reformasi'. The problem, I believe is in the State-Federal relationships, where the Federal government still do retain too much power preventing State's more autonomous rule and governance. States just have too little power and say - especially when it comes to the States of the Peninsular of Malaysia.

Then, there is the fear that people will be discriminated with regards to scholarships for students, other benefits, the fear of civil servants getting transferred to some 'rural' area or being 'overlooked' when it comes to promotions, etc,...There is a belief that those who vote against the BN will suffer such discrimination at all levels...

No Equitable distribution of wealth - but sufficient to pacify the disatisfaction of most people

Malaysia is a rich country, blessed with many natural resources - but unfortunately, the BN government failed in ensuring that there be an equitable distribution of wealth not just amongst its people, but also with regard to geographical areas. Some areas have received so much of the benefits of the countries wealth, compared to other areas. The people, who generally did not get their just share - but did get sufficient little to be able to live and survive comfortably, and this has calmed them down a bit. Poverty and abject poverty is low in the country.

Democracy - but a dictatorial/feudal style of governance

Malaysians generally do not feel that they are the 'bosses' with the power, but generally believe that they cannot get anything without the support of politicians and political parties of the rural coalition. 'People's Representatives' become 'bosses' not 'servants' of the people and promote dependency and patronage rather than empowerment - sadly, this kind of behavior has also been adopted by many a opposition politicians.

Even when it comes to claiming justice and compensations for an industrial accident, people are encouraged to go get a letter of support from the politicians and political party to get their claim processed. This really is not at all necessary - but this 'belief' has been cemented into the minds of people, and they believe that if they do not this support, their claims will not succeed.

Even when it comes to allocations to assist the poor and elderly provided by Federal Government, State or local government, what happens is that even the letters are sent not by post to the recipients but through members of political parties, and these monies are given at a function officiated by the politician, which people are forced to attend personally to get their allocations. There really is no need for this as letters could be send, with the enclosed monies directly to the people concerned or with instructions that they could present at the relevant offices of the said departments to get their allocations. We also see that not all in the category that is entitled gets the said letter and/or the allocations propagating the myth of the necessity of having political patronage or the need to be a supporter of the ruling political parties.

If there was only a public notification vide banners, etc that there is such allocation identifying the class of beneficiaries, at least all those who did not get the letters who are entitled can also go receive their benefits from the relevant offices of the relevant departments/ministries. But alas, all is done in a 'secretive' manner, that communicates a very wrong message, i.e. only those supporters will get it and it is the political parties that decide who gets and who does not.

The power and the ability to reward (or promise to reward) those loyal to the ruling political parties have also been seen during by-elections and elections, when suddenly so much are given to the people to get their support for the ruling parties.

For the poor, the promise of a low-cost house in the future, or the continued presence in a low-rent premises, has always ensured great support for ruling parties. For the small business person, the possibility of getting a small shop premise, or a spot in the market/night markets, etc.,...

It is this dependency culture, not a culture of rights and justice, that have kept the BN in power for many many years...but again sadly, many people believe that a similar culture seems to be practiced by the Pakatan Rakyat especially in the states they now govern.

Many say that in Selangor today, what has changed is only the political parties in power, and now it is their cronies that reap the benefits no more the BN cronies - and guess what, many have become 'lallangs' shifting alliances depending on who wins and who does not - a practical option for survival. For them, there is really no loyalty to the party or its ideologies, their support is very much based on practical solutions for the sake of personal/business survival and profits. Most affected of the Pakatan Rakyat parties, have been the new PKR party and that is why we have seen so many of their 'elected reps' and even party 'strongs' so easily jumping ship to other political parties. DAP and PAS do not seem to have much of this problem.

These 'party hoppers' betrays the people, who did 'sacrifice' a lot overcoming their fears to vote for the Opposition, and will have an impact on whether they will again vote for the Opposition the next time around.

Overcoming personal fear and transfering that fear to BN and politicians
But, the people are smart, and they know it is better to keep the 'political coalitions' who want to rule and govern insecure and uncertain of the people's support, and this will ensure that the people get more benefits and rights either way. BN, who have been totally confident of winning everytime in the past 50 over years, is now worried and is 'dishing' out more benefits and wealth to the people compared to past years, and thus for the better good of the people of Malaysia, it is good that the BN (or the Opposition Coalition) be always 'kept on their toes' with the realization that if they do not behave justly .e. be more just and equitable to the people, the people will reject them and choose another.

To maintain this, it is time that the BN loses more (even maybe States and the Federal governments they currently control) this coming elections.

The outcome of the Sarawak State elections is thus very important - and if BN continues to lose more and more seats, maybe even the right to rule, it will not only benefit the people of Sarawak but all Malaysians.

'They have no experience and have no capacity to rule' - is no more an argument that the BN can use anymore, as we have seen that the Opposition have managed to quite effectively and efficiently rule in Penang and Selangor ...with not too much problems or 'scandals'

Sunday, April 10, 2011

MIGRANTS AND RIGHTS IN MALAYSIA

More Important Than Rights is the Access to Justice

Migrants are human beings not commodities. Migrants are father, mother, brother, sister, husband ,wife , son, daughter and uncle to other human persons. Migrant workers are workers entitled to equal treatment and all rights accorded to any worker. Migrant workers come to Malaysia, leaving their families and homes behind,to earn a living to support themselves and many a time their families back home. Many migrants do not have much of a choice, for the means of earning a living is scarce in their home country.

Today, there are about1.8 million registered (or documented) migrant workers in Malaysia[i]. 15 countries now supply workers in various employment sectors in Malaysia with the largest number coming from Indonesia (1.2 million ) followed by Nepal which provides170,000 workers.[ii]Other sending countriesinclude India, Sri Lanka, Bangladesh, Pakistan, Burma, Thailand, Vietnam, Timor Leste and thePhilippines

According to government estimates[iii], there is an equivalent number of unregistered (or undocumented) migrant workers in Malaysia, and today that means 1.8 million undocumented workers. It is my opinion that the actual figure of unregistered (or undocumented) migrant workers in Malaysia is about 5 million.[iv]This estimate is supported by the fact that In 2004, based on official entry-exit records, there were about 5,852,997 personsor 38% of the total arrivals overstaying. Now undocumented migrants canenter Malaysia easily by sea and land, avoiding immigration and customs authorities and that is the manner of entry employed by the majority of undocumented migrants.

Malaysian labour force for the 3rd quarter of 2005 according to the Malaysian Department of Statistics was 10,498,600[v] and that means that number of migrant workers (both documented and undocumented) isabout 30% to 50%of the total Malaysian labour force. This fact of the growing number of migrant workers in Malaysia also tally with the figures of persons in the Malaysian prisons, where it was disclosed that25%of the prison community were foreigners in 2003, and in 2004 it was stated that the number of foreigners exceed the number of local Malaysian in prisons.[vi]A recent report also did state that out of Malaysia’s 10.5 million strong labour force, 2.6 million are foreign workers.[vii]

Migrants in Malaysiaarefrom a variety of countries, and this also include countries like Iran, Cambodia, Namibia, South Africa, China, Singapore, Nigeria, Peru, France, Taiwan,Columbia, Congo, Argentina andUzbekistan.[viii]

Whilst the majority are economic migrants, there is also a significant number of political migrants and/or refugees, and this would include the Acehnese, Burmese, Thais and alsoFilipinos.

Migrant workers are employed primarily in the construction, plantation, manufacturing and service sectors. There is also 320,000 registered foreign housemaids in Malaysia, of which 308,000 or about 96 percent are Indonesians. [ix]

There is also a large number of foreign sex workers in Malaysia where it is estimated that about142,000 women involved in sex work. It was recently reported that in 2005, a total of 6,446 alleged sex workers were arrested, an increase of 12 percent from the previous year. Topping the list of foreigners arrested were Chinese citizens, who numbered some 2,824. Indonesians arrested was 1,606, Thais at 910, while the

number of Filipinos arrested was 742. Other foreign nationals arrested for prostitution in 2005 included Vietnamese, Uzbeks, Indians and Cambodians.[x]

MIGRANTS AND THEIR RIGHTS UNDER MALAYSIAN LAW

Article 8 of the Federal Constitution of Malaysia provides that “All Persons are equal before the law and is entitled to equal protection of the law” and by the use of term “person” as opposed to ‘citizen’makes it most clear that this guarantee of rights extends also to all persons, including migrant workers, be they documented or undocumented. 6 out of the 13 Articles under Part II of the Federal Constitution entitled ‘Fundamental Liberties’ uses the word “persons” as opposed to :”citizens”.[xi]

Arrest and Detention

Generally when a person is arrested in Malaysia, he/shemust be brought before a Magistrate within 24 hours if the police wants to further detain him/her for purposes of investigation, and the police can with remand orders obtained from the magistrate detain a person up to a maximum of 14 days only.

However, when it comes “…to a person, other than a citizen, who is arrested or detained under the law relating to immigration…”, the police can arrest and detain him/her for a period of up to fourteen days before being compelled by law to produce the person before the Magistrate. Many migrant workers, when arrested, are held by the police for more than 24 hours in reliance of this provision. What is not clear is how long can persons under this category be remanded for?

Although, there is no provision that allows the police to resort to torture in the conduct of their investigation, there has been many reported incidence of torture in police custody. In February 2005, it was revealed that from 1990 until September 2004, there was a total of 1,583 deaths amongst prisoners recorded in the 28 prisons nationwide, with the highest number being in 2003 when 279 inmates died. During the same period 150 detainees died in police lock-ups or custody.[xii]

It must be pointed out that till this day in Malaysia there is no right to one phone call after being arrested and no right to immediate access to a lawyer (let alone friends, family and/or employer) in Malaysia.

Bail

The migrant has a right to be released on bail just like any other citizen.The disadvantage the migrant faces is the fact that he isa possible flight risk, and as such courts, even when they do grant bail generally imposes an additional conditions when it comes to foreigners like requiring theirtravel documents to be deposited in court. The other condition that is usually imposed is the requirement that the surety must be a Malaysian citizen.

In Malaysia, after being charged and one is allowed bail, money has to be deposited in court and the surety will have no access to this monies until the trial ends. When it comes to a foreigner, many a Malaysian worry about the fact that accused may abscond and if and when that happens the bail money could be lost forever – and as such it is indeed adifficulty task for migrants to find local persons to stand as sureties. The result is that many end up in the remand prisons languishing for months (even years) as they wait for their day in court .

In the past, it was a popular perception that it was near impossible for a migrant worker charged with a criminal offence to be released on bail pending his trial and sadly many did not even apply, let alone try to apply for bail.

In a case, that I personally handled some years ago, which involved 6 foreign nationals[xiii], the court in the first instance refused bail. But persistence, which included an application to the High Court for a revision finally resulted in the Magistrate allowing bail for these foreigners. In this case, the foreign nationals came to Malaysia on a social visit pass, which had expired during their detention, but even this did not stop the court from allowing the said accused persons to be released on bail. The Magistrate in this case even went further to direct the Immigration Department to issue Special Passes so that these foreigners could remain in Malaysia legally whilst waited for their day in court. The Court also did issue the necessary letters to the Immigration Department to facilitate in the application for Special Passes for these persons.

MIGRANTS AND THE EMPLOYMENT LAWS

In Malaysia, migrant workers haveaccess to the Labour Court[xiv] and the Industrial Courts[xv] just like the local worker. The problem is that when Migrants come to the country, their very presence and their ability to work legally is linked to a work permit, which stipulatesa particular employer. And when a migrant worker wants to refer his rightful claim to the Labour Court and/or the Industrial Relations Department, the usual thing that happens is that the employer immediately terminates his work permit and cease giving him employment, wages and board.Without a valid work permit, a migrant worker cannot legally work and earn a living in Malaysia. As such although a migrants has a right in law, the claiming of this right is practically impossible.

In the case of Rajakannu Boopathy & 39 other Indian nationals, donations had to be sought to pay for food and boardof these migrant workers whilst they pursued their claim against their employer, one Gopis Construction (Malaysia) Sdn Bhd, at the Seremban Labour Court. The minimum cost of maintaining one of this migrant was about RM5-00 per day, and that did not include money required for rental, utility bills and travel cost to and from the court.

At all times during their struggle for justice, these migrant workersran the risk of being arrested and detained for not having proper travel documents and/or visa to allow them to continue to stay in Malaysia. They could legally not work and earn a living and had to rely on donations and goodwill of others. The Immigration Department finally agreed to issue Special Passes to allow them to stay legally in Malaysia, but not to work. RM100-00 was needed for a one-month special pass for each worker

Their claim was for wages of 3 to 6 months that their employer did not pay, and for the balance of wages based on their initially agreed wages right from the first day they started working in Malaysia until the day they filed their action in the Labour Court.

In this case the employer had gone to India, conducted interviews and skills test and thereafter made each worker a definite offer which included salary. Thereafter, in accordance to the requirements of Indian Law, they signed the standard form employment agreement which very clearly stipulates the wages they will receive, as well as their other employment rights. The workers signed the employment agreement before an authorized agent of Indian Protector of Emigrants (POE), and thereafter the employer signed the agreement before a designated officer of the Indian High Commission in Kuala Lumpur. Unfortunately original copies of the agreement were not given to the worker, and finallyonly a photocopy of this agreement was obtained from their agent in India.

After this POE employment agreement was executed, to comply with the requirements of the Malaysian Immigration Department, the employer that required the duly executed employment agreement to be submitted together with the application of a work permit, the employer rather than submitting the POE agreement did prepare another agreement, whereby in this agreement was far less than the sum stated in the POE Employment Agreement.

Before departure, the workers had to sign a whole lot of documents, whereby the workers unknowingly were made to sign yet another simple employment agreement, and this was on an official stamp paper (i.e. a document equivalent to a Statutory Declaration which had to be affirmed before a Judge and/or a Commissioner of Oaths). The employer left the space where the wages per month should have written in blank, and thereafter kept the originals of this stamped agreement with him.

It must be stated that the workers were generally unaware that they had in fact signed 2 other employment agreements, and thet only knew and believed that was only one agreement being the POE Employment Agreement.

When it came to the labour court trial, objections were made about the admissibility of the photocopied POE Employment Agreement, and as such we had to try and get an original copy of the said POE Agreement, which should have been kept by the POE in India and/or the Indian High Commission in Kuala Lumpur. To our dismay, both these parties did not have any copy of the original POE Agreements, let alone a photocopy of the said agreements in their possession.

The Immigration Department of Malaysia also did not have an original copy of the employment agreement submitted to them during the work permit application, and all they had was the copy of the agreement that wasscanned into the computer record of the individual migrant worker.

On the other hand, the employer had in his possession the original copy of the stamped agreement.

As such, given the fact of available admissible evidence, the fact that the employer Company was financially unstable and was then on the verge of insolvency and the fact that the migrant workers had been successful in another court action at the Kuala Lumpur High Court in changing their employer and getting the right to live and work in Malaysia for at least a further 2-3 years with a Social Visit (Temporary Employment) Pass[xvi], the migrant workers made the decision to settle the case and take the minimal sum offered by their ex-employer, where the figures was based on the wages as stipulated in the Employer’s stamped paper Employment Agreement.

The Rajakannu Case – Right to Change Employer and the Right to Live and Work in Malaysia whilst theypursue their rights in law

After the filing of the case against their employer, one Gopies Construction, their employer thereafter did not provide work, wages and/or board to these migrant workers. The workers survived on the kindness of many persons but this was and couldonly be a very short term solution. To continue to remain in Malaysia after the expiry of the Employment Pass, theyrelied on RM100-00 monthly Special Pass (which only allows them to stay BUT not work

The workers, after commencing their action in the Labour Court,then applied to the Director General of Immigration to allow them to continue to live and work in Malaysia with another employer (or alternatively on their own) to enable to pursue their rights under the Malaysian labour laws.

The Immigration Department responded by calling the workers in for various interviews. The workers also identified a potential Employer and furnished the Immigration Department with Employment Agreements signed with the potential employer company, which would become effective once the Immigration Department issued the requisite Work Permits. The first application to the Immigration Department for a variation of the terms and conditions of their work permit was made on 10/10/1999.

After about 10 months had lapsed, the workers had still not received any reply with regard their applications, and finally 36 of these migrant workers[xvii] files an action in the Kuala Lumpur High Court where the Director General of Immigration and the Immigration Department of Malaysia were named as Respondents. What was sort in this case was a court order to compel the Respondents to provide a reply to the migrant workers’ application.

Being an extraordinary applications, the battle in court was intense and finally just before the court handed down a judgment, the Respondents conceded and proposed the recording of a consent judgment which stated that the Director General of Immigration shall cause to issue Social Visit (Temporary Employment) Pass to all the applicants to enable them to live in Malaysia and work with Syarikat Central Generative Sdn Bhd (being the new employer). The consent judgment was recorded on 6/12/2000.[xviii] As such there was no judgment of the court, and there was nothing that others could use to further advancemigrant rights in Malaysia.

The Rajakannu Case – Contempt proceedings against the Director General of Immigrations.

Following the recording of the consent order, despite the submission of the required application forms and the payment of levy by the new employer, the DG of Immigration delayed several months before issuing the work permits. When the permits were finally issued on 19-4-2001, it was discovered that the permits were for 1 year, beginning from the date their last permits had expired and as such the majority of the workers received lapsed permits, and others got permits that would expire in a couple of months thereafter.

Various letters were sent to the DG of Immigration asking him comply with the court order and issue new valid permits but no response was forthcoming from the DG of Immigration.

Again, the workers had to go to court and this time it was to commence committal proceedings against the DG of Immigration. Leave was obtained on 24/7/2001 and committal proceedings were initiated. Again after lengthy arguments, just before the court handed down the judgment, the DG of Immigration send a letter admitting his mistake.

In a contempt proceedings, the court can order arrest and detention, fine or costif and when a person is found to be guilty of contempt. The Court was of the opinion that when a case involving a Public Officer carrying out his public duty , then arrest and/or fine may not be available. If fine, it will the government taking out money from one pocket and putting it into the other. The only realistic punishment would be cost, and this would be punitive cost.

In light of the DG of Immigration written admission of his mistake, the agreement that the Respondent to pay the Applicants cost of the whole action and the fact that the DG of Immigration had finally issued new work permits, the court yet again recorded anotherconsent Judgment on 10/4/2002stating also that cost be taxed and that the DG of Immigration shall not impede an application for an extension of the work permits by these migrant workers as and when theircurrent permits expired.

The taxing officer taxed the cost at RM10,000-00 to be paid to all the 36 applicants, and this works out to slightly more than RM250-00 per person, and this was gross injustice done to these migrants,who had no work or wages by reason of the action/omission of the Respondents for almost 30 months. The applicants applied for a review of the cost awarded by the taxing officer and until this date the matter is still at the review stage.

The Rajakannu Case – Claim for Damages & Compensation against the DG of Immigration and others

On 30/4/2001, 31 of the workers commenced a civil action claiming for loss of wages from October 1999 until a date to be determined, being a sum of about RM640,000 plus damages. This was done in light of the outcome of the earlier action and the acknowledgement of mistake by the DG of Immigration. It was then not possible to go for a claim of damages and compensation in the earlier action[xix] On the first hearing date, the Honourable Judge dismissed all the technical preliminary objections raised by the Federal Counsel and proceeded to record judgment in favour of the migrant workers. The Judge could not complete his judgment as he wanted the actual agreed salary for each individual worker. He adjourned the case and fixed another date so that this information could be provided to the court.

But on the next date, the Judge had a change of mind and askedthe Federal Counsel to submit on his technical objections[xx], both of which were minor objections that could have been cured, and normally court would have asked the Plaintiffs to do the necessary to remedy these irregularities but this Judge stating that it was finally his discretion allowed the government’s lawyer’s objections and struck off the migrant workers suit with cost on 12/8/2002. The workers have since appealed to the Court of Appeal and this appeal is yet to be heard.[xxi] All we can hope for is that these migrants workers ultimately gets justice.

RIGHT TO LOVE, MARRY AND HAVE A FAMILY

Many migrant workers were having relationship with Malaysians, some even had children with locals, and some were even getting married to their local partner, and the Malaysian government reacted by allegedly[xxii] imposing a condition on work permits prohibiting marriage.

In one case, the marriage had occurred before the policy was made known and there were children of the marriage but before the matter could be taken to court the migrant husband unfortunately abandoned the wife and the family and left the country. Hence, we have to wait for another time when this matter could be brought before the court for a determination.

The fact that Malaysia today has ratified/acceded the UN Convention on the Rights of the Child would have a bearing in such cases since Article 3(1) is most clear that now the “..best interests of the child shall be a primary consideration”.

The fact that there exist children of migrants in Malaysia has just recently been acknowledged by the Malaysian government. In Sabah, one of the 13 States of Malaysia, where it was recently reported that there are about 36,000 children of migrants. It is good to note that special schools will be set up to cater for these children. What exactly is the number of children of migrants is still a mystery? What about children of a migrant with a Malaysian? Would the Migrant Parent be allowed to stay on in Malaysia with their children or would they be forced to return home? Will they be given multiple entry visas to enable them to have frequent visits to be able to spend adequate time with their children? Maybe, in the Maruly Azis case, the court will finally provide some answers to many of these questions.

MARULY AZIS CASE – THE RELEVANCE OF THE CRC.

In this case, the father, an Indonesian came to Malaysia in 1978. He applied and got an Entry Permit, and was then issued a National Registration Identity Card (NRIC) with a permanent resident status. He went back to Indonesia, married one Romita Hasibuan (an Indonesian national) and brought her back to Malaysia.

Romita was able to stay in Malaysia by virtue of a “spouse visa”, which was a 6-month visa that had to be applied for by her husband. The marriage had resulted in 4 children, and by virtue of Malaysian law, all these children were Malaysian citizens. All the children were born in Malaysia, lived their lives in Malaysia and also was in Malaysian schools. On 23-3-2005,Abdul Mutalibwent with his son, Maruly Azis, to the National Registration Department to apply for his son’s identity card (as he had reached the age of 12[xxiii]). Abdul Mutalib was then wrongly arrested, wrongly detained and thereafter wrongly deported back to Indonesia.

The government claimed that he was a prohibited immigrant and he could not remain in Malaysia. Romita, the wife, being an Indonesian national also would not be able to stay on in Malaysia when her “spouse visa” expired. A campaign was initiated with the call to allow Romita and her family to be able to continue to live in Malaysia as one family.[xxiv]

As time of the expiry of the “spouse visa” drew near, a court action[xxv] had to be filed, and an application was made to enable Romita to continue to stay with her 4 children on 23/9/2006. On 26/9/2003, the applicants managed to get an ex-parte ad-interim order allowing Romita to stay until this application was heard and disposed off inter-parte. At the inter-parte hearing, the Federal Counsel proposed that a consent order be recorded to the effect that Romita could continue to stay with the children until the end of this case, and that the immigration Department would issue her a gratuitious special pass, wherebyshe would not have to make any payment until the whole suit is heard and disposed of. This order was recorded on 28/11/2005.

Again, there will be no judgment recorded in this matter where there was reliance on the Child Rights Convention[xxvi]. This case is still pending, and the Immigration Department has issued the Special Pass to Romita.

For the sake of completion,Abdul Mutalib and Puan Romita also did file another suit against the Home Minister & 2 Ors, and this is also pending at the time of writing.

MIGRANT DOMESTIC WORKERS

There are today 320,000 registered foreign housemaids in Malaysia, and out of this 96 per cent or 308,000 are Indonesian migrant workers. There is very little of no protection for domestic workers in Malaysia’s employment laws at the moment.

“Domestic servant” is mentioned in the Employment Act 1955, and it means “ a person employed in connection with work of a private dwelling-house and not in connection with any trade, business, profession carried on by the employer in such dwelling house and includes a cook, house servant, butler, child’s nurse, valet, footman, gardener, washerman or washerwoman, watchman, groom and driver or cleaner of any vehicle licensed for private use.”In Malaysia, save for driving, a migrant domestic worker normally ends up doing all of these different jobs.

With regard the domestic servant, it is clearly stated that the following sections and/or Parts of the Employment Act are not applicable to them, being:-

Sec. 12 (Notice of termination of Contract)

Sec.14 (Termination of Contract for Special Reasons)

16 (Employees on Estates to be provided with minimum number of days’ work in each month)

22 (Limitation on advances to employees)

61 (Employers Duty to Keep Register)

64 ((Employers Duty to display notice boards)

IX (Maternity Protection)

XII (Rest Days, Hours of Work, Holidays And Other Conditions of Service)

XIIA (Termination, Lay-Off And Retirement Benefits

In short, there is no protection for domestic workers under the Malaysian employment laws. Jordan has legislations to provide some rights and protections to domestic workers. In Taiwan, an Household Services Act is before their Parliament. In Malaysia, with over 320,000 domestic workers, it is time for some legislation to protect the rights of these domestic workers.

Although, the Malaysian Immigration Department “policy” or “guidelines of employment” do stipulatethat a domestic worker is entitled to one day off – but in practice save for the Filipino worker, none of the other domestic workers seem to be getting any day off, let alone any time off. They are treated more like “property” than human beings.More like slaves than workers. Many do not even have the liberty to make phone calls to their families back home. Some are even given just 2 basic meals a day.

There has also many cases of abuse of domestic workers that have come to light – but alas without the freedom to leave the home (or their employers watchful eye), many may be suffering abuses in silence. Employer also hold on to passports and other travel documents of migrants, all with the alleged reason that they are afraid that the maid may run away (oh yes – run away maybe with their property or children..) Hence, there is very little opportunity for victims of abuse to even escape the abuser – let alone complain to their embassies, the Human Resource Ministryand/or the police. It comes as no surprise when the Deputy Human Resources Minister recently disclosed that only about 110 such cases mistreatment of Indonesian housemaids[xxvii] and other workers by their Malaysian employers were reported annually to the ministry since 2002[xxviii]

It must also be noted that many Malaysian employers of migrant workers, other than domestic workers,also do hold on to travel documents, wages and do deprive their employees freedom of movement and access to communication. In one shop, a Nepali worker, I spoke to recently, who has been in Malaysia several months have not even been allowed to step out of the shop – all he has seen and knows about Malaysia is what he sees from the shop entrance.

UNDOCUMENTED MIGRANT WORKERS

Some of these are really refugees from Aceh, Southern Thailand, Southern Philippines[xxix] and Burma, and of course they cannot come to Malaysia with the blessings of the sending country.

Some others come across the border because they just cannot afford the payments that they have to fork out to pay the agents and/or the various government authorities, and the fact that it is so easy and cheaperto just sail over or cross the border and find jobs here.

But alas being undocumented makes them vulnerable to abuse by the authorities, police and even “employers”.[xxx]

MIGRANTS ARE HUMAN NOT SAINTS

Migrants are human beings and not saints. Of course, there will migrant workers who abuse their employer, steal, commit murder, traffic in drugs and involve themselves in criminal activity. But what is sad is that for whatever reason, their crimes are highlighted more than others. There is no study to show conclusively that the percentage of migrants in the country involved in crime (or alleged to have committed crime) is higher than the percentage of local Malaysians involved in criminal activities. Some say the highlighting of crime committed by migrants is a strategy to get a better deal when the MOUs are signed between sending countries and receiving countries. Whatever the reason is, this perspective of migrants has resulted in prejudice against migrants.

DISCRIMINATION OF MIGRANTS BASED ON NATIONALITY

For the same work done, Indonesian migrants get the least remuneration compared with those from other countries.[xxxi] When it comes to Filipinos, they are the highest paid of all migrants.[xxxii] The cause could be that some government are more determined to protect their citizens than other government.

A BLEAK FUTURE UNLESS…

There are many other aspects of migrants and human rights thatshould be looked at but have not been done in this paper. Work Conditions, Exploitation by the Middle Man, Detention Conditions, Local Reaction to Migrants, Migrants and the Worker Unions and Crackdowns by the State are just some of the areas that could not be covered here.

What has been touched on is maybe just chapter one of a many chaptered book on migrant workers. Being human persons there is so many different aspects and facets of existence that need to be analyzed and discussed, and this paper only deals with a few.

There is definitely a need for legislation to protect labour rights and other rights of migrants. The 300,000 over domestic workers especially need legislation to protect their rights, There must also be a development of a mechanisms and procedures to ensure that there is real access to justice.

With the ratification/accession of the UN Convention on the Rights of the Child (CRC) and the CEDAW, there is great possibility that rights of migrants provided directly and indirectly in these conventions could be relied upon for greater recognition and protection of migrant rights.

Malaysia, with its 26 million population, has the largest disparity between the rich and the poor in Southeast Asia[xxxiii]. Malaysia’s top 10 percent of the population is 22.1 times richer than the poorest 10 percent.

There is also growing unemployment within the local population. One of the reasonsis the fact that Malaysian government, companies and institutions have been working towards becoming more efficient to be able to compete with the foreign companies, institutions and banks when the doors are open to free trade in compliance with the obligations of Malaysia under the World Trade Organisation (WTO) Agreements, the Asean Free Trade Agreement (AFTA) and the various other Free Trade Agreements it has entered into. In this drive to become more efficient, it is labour that is sacrificed and more persons are becoming unemployed. Jobs, especially permanent jobs, are getting more and more difficult to come by. With the recent 40 cent increase of petrol price, the cost of living will also further increase. Bleak times are ahead for Malaysians, and this would also affect migrants/refugees in Malaysia.

[iii] According to a report by Amnesty International, government statistics indicate that through 1 June 2004, there were at least 1.3 million documented migrant workers working in Malaysia (an increase of about 500,000 since 2003) and between 700,000 to 1.2 million undocumented migrant workers.

[iv] (Star 27/9/2005), Records show that 15,452,112 foreign nationals entered Malaysia in 2004 but only 9,599,125 people left the country during the year – meaning that there were about 5,852,997 or 38% of the total arrivals overstaying.

[vi] In 2003, the Deputy Home Minister stated that over 25% of prisoners on Malaysian jails were foreigners, while by June 2004 there were now more foreign prisoners than Malaysians in jails. Now, it must be factored in that many a time foreigners either are not offered bail and/or cannot afford bail – and it is also not certain whether the figures include remand prisons, being where persons not yet convicted are held.

[xi] Article 5 (Liberty of the Person), Article 6(Slavery and Forced Labour Prohibited), Art.7 (Prohibition against retrospective criminal laws and repeated trials), Art. 8(Equality), Art. 11(Freedom of Religion) and Article 13 (Right to Property) are amongst the 8 Articles under Part II (Fundamental Liberties) of the Federal Constitution that applies to all persons.Art. 9(prohibition from Banishmjent and Freedom of Movement), Art.10(Freedom of Speech, Assembly and Association), Art.12 (Rights in Respect of Education) uses the word “citizen” and not “persons”.

[xii]Malaysiakini, 7/2/2005 - In Malaysia "...from 1990 till September last year[2004], a total of 1,583 deaths among prisoners were recorded in 28 prisons nationwide, with the highest number in 2003 when 279 inmates died. During the same period, 150 detainees died in police lock-ups or custody" (statistics from a 49-page parliamentary written reply by Prime Minister Abdullah Ahmad Badawi)

[xiv] Employees who generally have a monetary claim against their employer can make a complaint and the Labour Department, and if there is no resolution, then the Labour Court will convened and this will be chaired by a Labour Officer. Complaints of non-payment of wages, wrongful holding back of part wages,etc can be referred to the Labour Court.

[xv] If an employee is wrongfully and/or constructively dismissed by her employee, she has to make a complaint at the Industrial Relations Department(IRD) within 60 days days from the date of dismissal. The IRD will then call for a conciliation meeting between the Employer and the employee. If conciliation fails, the matter is referred to the Minister, who then refers or does not refer the matter to the Industrial Court. If referred to the Industrial Court, then the case goes to trial. Now, if the Minister does not refer the matter, then the employee has a right to apply for a Judicial Review (but here legal charges and cost is involved), so generally the matter ends here for the employee. In the Industrial Court, the employee’s claim is for re-instatement but at the end of the trial, the Court is at liberty to also award damages in lieu of reinstatement.

[xvi] The 40 Indian workers came into Malaysia as migrant workers under an Employment Pass (Rule 9 Immigration Regulations 1963), and with regard to this employment pass, the law stipulated that the minimum wages should be RM1,200-00 per month. This is in fact the one and only provision in Malaysian Laws that stipulate a minimum wage. The majority of the migrant workers in Malaysia only have a Social Visit(Temporary Employment) Pass (Rule 11(1)(ii) Immigration Regulations 1963) and here there is no stipulation of any minimum wage.

[xvii] When this matter started there were 40 workers, but 4 just could not take the stress and chose to return home and in the Kuala Lumpur High Court case (Usul Pemula No: R2-25-76 Tahun 2000)

[xviii] It was sad that the High Court did not hand down a Judgment on this case, for if that was done it would have been a precedent that other migrant workers could rely on in the struggle for migrant rights. One significant point would have been the right for the migrant worker to apply for a variation of his work permit, including the change of employer. Before this and still today, it is believed that only the employer has the right to apply for work permits and/or variation of the said permits. To date, it seems that there has been no other similar cases in the Malaysian Courts.

[xix] At that time, it was no possible to include a claim for damages in the 1st court action but today the Rules of the High Court has been amended and a claim of damages could be included in the 1st action.

[xx] One of the objections was that the Government of Malaysia was not named as a party. It is still believed that there is no need to specifically name the Government of Malaysia as a party , more so since the DG of Immigration and the Immigration Department of Malaysia were already named as parties.

[xxi] The lawyer was threatened with arrest under the Internal Security Act if we went further after the High Court dismissed the suit. In fact these threats, and other threats, were directly and indirectlymade at the earlier stage in the first suit. One senior Minister also tried to get the workers to withdraw their suit. This is only what the lawyer understood by the words and actions. There was nothing in writing – only verbal communications to the lawyer alone.

[xxii] Allegedly – because to date the author has not seen any such condition in the written form. This could be one of those many unwritten policies that the Malaysian government is famous for. The policy is relied on when the Government wants to use it, and many other policies are denied when others want to rely on it. This is the problem with unwritten policies. For certainty, Malaysia must start having written policies that can be accessed by the public, and better still if these policies are gazetted.

[xxiii] In Malaysia, when a child attains the age of 12, he needs to apply for his National Registration Identity Card (NRIC).

[xxiv] The matter was taken to the Human Rights Commission, the Bar Council and even to Parliament. A signature campaign was initiated, which collected over 6,000 signatures, An urgent appeal was also initiated by the Migrant Forum in Asia. MFA and many other organizations also wrote in support for the re-unification of the family ofAbdul Mutalib, Romita, Maruly Azis Bin Abd Mutalib (12 +), Sarah Nor Varah Hanim Binti Abd Mutalib(11+), Yonatan Adam Fauzi Bin Abd Mutalib(9+) and Ismael Syah Putra Bin Abd Mutalib(6+)

[xxvi] In the case of Mohamad Ezam -v- Ketua Polis Negara (2002) 4 CLJ 309, a Federal Court case, it was stated in the judgment“In the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which member states can ratify or accede to and those principles will then have the force of law”. Now in 1995, Malaysia ratified/acceded the UN Convention on the Rights of the Child, and there is NO reservation with regard to Article 3(1), which states“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideratoion”. Further, unlike the United Kingdom, Malaysia did not have any reservation as to the application of the CRC to “...matters of immigration and citizenship law”

[xxvii] Malaysiakini 22/5/2004; “Housewife Charged for Horrific Maid Abuse” “…three charges of voluntarily causing grievous hurt to Nirmala Bonat (from West Timor), 19, with dangerous weapon - an iron and hot water - at her house at 33B-25-6, Villa Putera, Jalan Tun Ismail here in January, March and April this year.She is also charged with voluntarily causing grievous hurt to Nirmala with a metal cup at the same place at 3pm on May 17 this year…”

[xxix] Malaysiakini 2/3/2005 “At least 100 Filipinos arrested in Immigration crackdown: official” “…Up to half a million Filipinos live in Malaysia, many of them families of refugees who fled a separatist rebellion on the Mindanao region of the southern Philippines in the 1970s…”

[xxx] Malaysiakini,28/2/2005‘100.000 Indon illegal workers ‘not paid wages’“…About 100,000 Indonesian illegal migrant workers who have not been paid wages are refusing to return home even in the face of an imminent crackdown, claimed Indonesia’s Labour and Transmigration Minister Fahmi Idris today…”

[xxxii]Malaysiakini, 13/2/2006 “Minister: No perks for Indonesian Maids” – “…The live-in maids often receive a salary averaging RM380 a month, far less than counterparts from the Philippines…” “..Home Affairs Minister Azmi Khalid said that allowing Indonesian maids to be hired under the country's labour law - which would provide for annual and sick leave, days off and overtime payment - would complicate matters for employers, said the New Straits Times” “..foreign maids in Malaysia are prey to physical, psychological and sexual abuse because of flawed government policies and typically work 16 to 18 hour days...”

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